Thursday, 19 April 2012

Consistent
with the principles espoused by the Open Government Partnership (OPG) [1]
the Government of Canada is committed to cultivating greater transparency by
focusing on three key strategic pillars:

Open Information designed to make it easier for constituents
to find and access information by streamlining document and records management
life cycle processes and by empowering citizens with single point of access to
heterogeneous information sources such as publications, web pages and data from
laptops, mobile devices and from tablets;

Open Data, the objective of which is to provide government
published datasets in a manner that may be repurposed for both academic
research and commercial purposes; and

Open Dialogue, the focus of which is to cultivate interactions
with constituents by leveraging the ephemeral nature of social media
technologies as a means to seek input to and gage constituency sentiments
relating to government policies.

Recently the
Government of Canada published its Action
Plan on Open Government[2]
which outlines the go forward strategy for “fostering the principles of open
government”. The Action Plan will be reinforced with a Directive on Open Government which is expected to be effective in
fiscal 2012-2013. The strategic outcome of the Directive on Open Government is
to “provide guidance to 106 federal departments and agencies on what they must
do to maximize the availability of online information and data, identify the
nature of information to be published, as well as the timing, formats, and
standards that departments will be required to adopt. The clear goal of this
Directive is to make Open Government and open information the 'default'
approach.”

Delivering
on the promise of this ambitious agenda requires a coordinated effort that
encompasses legal, policy and technology considerations. For one “open data”
implies that its availability is unencumbered by privacy and security
restrictions.Addressing this issue is one of the principal
tenets of the Action Plan on Open Government by providing a shared services-based
document and records management platform designed to promote better record
classification, declaration, retention and disposition best practices. Second,
use of “open data” requires a licensing regime which empowers third parties to
re-purpose content published by the Government of Canada. The absence of such a licensing framework may
create legal challenges as Copyright law protects original expression of ideas
and under certain circumstances also protects the arrangement of raw data that
requires some level of skill in compilation.[3]Removing such restrictions fosters innovation
by virtue of which such information may be leveraged for the public good. In
fact, the Action Plan on Open Government contemplates the implementation of a
“universal Open Government License” that obviates the potential legal
impediments in leveraging published Government of Canada information. It is interesting to note that very recently
Canada Post launched a law suit for alleged copyright infringement by www.geocoder.ca, a website that provides geocoding
services based crowd-sourced database
relating to Canadian postal codes.The
statement of defence is based on the argument that postal codes are facts and
as such are not copyrightable.Having
clarity under which published Government of Canada information may be re-used
is integral to the long term viability of the Open Government initiative.

Another
interesting dimension of the Open Government initiative is one of
economics.Some studies suggest that
there should be some form of cost recovery associated with providing such breadth
of data for general consumption by corporations, and by citizens.However the prevailing consensus is that the
effort and costs associated with administering such a scheme would far
outweighrevenue streams that may be
realized.In fact such a scheme may well
serve as a deterrent to accessing such information.A far better approach is to encourage
unfettered usage as it may stimulate innovation and thereby increased corporate
and individual tax revenues collected by the Government from secondary publishing
and associated services provided by the private sector.

Open
Government may have profound transformative implications – that is
democratization of information that has the potential to empower citizens to
engage more directly in the policy formulation process on the one hand and
stimulate private sector innovation by leveraging the data on the other hand. It
may also have efficiency implications in “outsourcing” service access and
delivery to constituents thereby reducing delivery costs while improving
constituency service levels. Equally important is the network effect associated
with open data. Metcalf’s Law states that the power of the network increases
exponentially with each additional node added to the network. The positive
implications of the network effect are evident in examples such as the human
genome project[4].The opportunities inherent in the Open
Government initiative are enormous as unfiltered data may be transformed into
meaning and applied in innovative ways in the form of knowledge and wisdom. The
Open Government initiative is a step in the right direction although some argue
it should go farther and faster.[5]

[3] CCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 SCR
339, 2004 SCC 13 is authority for the proposition that arrangement or
repurposing of data such as directories and tabular information may be
protectable under copyright.

Electronically stored information is discoverable regardless of format
and location. [2] Virtually all jurisdictions in Canada have
incorporated The Sedona Canada Principles
Addressing Electronic Discovery (the “Sedona Canada Principles”).[3] For example rule 29.1 of the Ontario Rules of Civil
Procedure requires parties to identify, collect, preserve and produce ESI that
may be relevant and material in a pending litigation.[4]

The cost of ESI production can be prohibitive. It is estimated that the
average cost to defend a corporate lawsuit exceeds $1.5 million per case.
Moreover, failure to produce ESI may result in adverse inferences. In such
cases courts may grant a preservation order in the event that the moving party
has reason to believe that relevant and material evidence may be destroyed the litigation
hold notwithstanding.[5]

Effective document and records management best practices are of
paramount importance for mitigating ESI related production costs. An Electronic
Document and Records Management System (EDRMS) is an integral element of mitigating
e-discovery risks. Equally important is implementation, communication and
enforcement of a consistent set of policies and methodologies associated with
the management of ESI. A universally accepted framework is the Electronic Discovery Reference Model (EDRMS)[6]. The model consists of an end-to-end lifecycle that
encompasses identification, preservation, collection, processing, review,
analysis, production and preservation of ESI.

Implementation of a robust ESI preservation strategy has many financial
benefits as well may provide a shield against “fishing expeditions” by opposing
counsel. For example the ESI guidelines provide that “a party may satisfy its
obligation to preserve, collect, review and produce electronically stored
information in good faith by using electronic tools and processes such as data
sampling, searching or by using selection criteria to collect potentially
relevant electronically stored information.”

Technology plays an important role in helping organizations minimize ESI
production costs. A study by the eDiscovery Institute[7] outlines a number of technological approaches that
can significantly reduce ESI production volumes by as much as 92%. These steps
include the use of hashing algorithms to identify duplicate files, the use of
standardized meta-data and classification models[8], use of email threading software to identify patterns
relating to initiating, forwarding, replying and attaching documents to emails.

An emerging ESI tool is what is generally referred to as predictive
coding. Traditionally discovery is a linear and time consuming process of
lawyers visually and manually reviewing many thousands of documents that may be
deemed to be responsive or privileged. Predictive coding is a technology that
automates the review process through the application of advanced semantic
analysis of text and meta-data within sample documents analyzed by the software
The system then “learns” how to accurately categorize and classify a larger
universe of documents as responsive, non-responsive and privileged. A recent US
judgment[9]affirmed the value of predictive coding as” more
accurate -- and 50 times more economical -- than exhaustive manual review.”

A particularly useful and comprehensive review of eDiscovery
jurisprudence in Canada may be found at:

[1] According to International Data Corporation, the
total amount of global data is expected to grow to 2.7 zettabytes during 2012.
This is 48% up from 2011.[2] The Canada Evidence Act defines an electronic record
or document as“data that is recorded or stored on

[5] So called Anton Piller Order a remedy give to the
moving party “should have inspection so that justice can be done between the
parties… (and)…there is a grave danger that vital evidence will be destroyed”.